Definition of Aggravated Assault
As defined under Section 784.021, Florida Statutes, Aggravated Assault consists of four factual elements:
- The accused intentionally and unlawfully threatened, by word or act, to do violence to the alleged victim,
- At the time the threat was made, the accused appeared to have the ability to carry out the threat,
- The accused’s threat created in the mind of the alleged victim a well-founded fear that the violence was about to take place, and
- The assault was made either with a deadly weapon or with a fully formed conscious intent to commit a felony.
Essentially, Aggravated Assault is an assault with an additional act consisting of the use of a deadly weapon or the intent to commit a felony. Larkins v. State, 476 So. 2d 1383 (Fla. Dist. Ct. App. 1st Dist. 1985).
The first intent element required in an Aggravated Assault prosecution is the intent to threaten violence against the alleged victim. Cambell v. State, 37 So. 3d 948, 950 (Fla. 5th DCA 2010). The State need not prove that the defendant actually intended violence against the other person. Id. at 950-51. There is also no required showing of actual contact or wounding of the victim. Knight v. State, 44 Fla. 94, 32 So. 110 (1902).
With regard to the fourth element, above, the conscious intent to commit a felony can arise in any number of aggravated assault cases where the defendant engages in a felonious act, including robbery, rape, murder, and burglary. Machin v. State, 162 So. 2d 547 (Fla. 3d DCA 1964) (robbery); Newsome v. State, 355 So. 2d 483 (Fla. 2d DCA 1978) (sexual battery); Caraker v. State, 84 So. 2d 50 (Fla. 1955) (murder).
Where an aggravated assault prosecution is brought on this basis, the defendant’s intent to commit the felony is the essence of the charge, and the State must distinctly allege within the Information (charging document) the intent with which the assault was made. Black v. State, 173 So. 2d 166 (Fla. Dist. Ct. App. 2d Dist. 1965). The charge may thereafter be proven with direct or circumstantial evidence, such as a statement or other conduct indicating the felonious intent. Caraker v. State, 84 So. 2d 50 (Fla. 1955); Newsome v. State, 355 So. 2d 483 (Fla. 2d DCA 1978).
Penalties for Aggravated Assault
In Florida, Aggravated Assault is a third degree felony, with penalties of up to 5 years in prison or 5 years probation, and a $5,000.00 fine. The offense is harshly prosecuted throughout the State, and even first-time offenders will face a realistic possibility of prison.
The range of punishments can increase substantially, to include mandatory prison of up to 20 years, where a firearm is discharged during the course of an incident. Even if a firearm is not discharged, the mere fact that a gun was wielded during the assault will subject the accused to a 3 year minimum mandatory prison sentence.
Meaning of “Deadly Weapon”
For purposes of Florida’s Aggravated Assault statute, a “deadly weapon” is a weapon that is used or threatened to be used in a way that is likely to produce death or great bodily harm. The definition of deadly weapon is surprisingly broad. Some examples of acts that may constitute an aggravated assault in Florida include the following:
- a defendant waiving a pocket knife around while threatening to “poke” the alleged victim. J.M. v. State, 872 So. 2d 985 (Fla. 1st DCA 2004);
- the use of a beer bottle to strike the alleged victim on the head. Cloninger v. State, 846 So. 2d 1192 (Fla. 4th DCA 2003);
- driving a car towards police officers sitting in another vehicle, as if intending to make impact. Bryan v. State, 865 So. 2d 677 (Fla. 4th DCA 2004);
- making threats with a knife outside a car towards a person sitting inside of a car with a closed window. King v. State, 12 So. 3d 1271 (Fla. 5th DCA 2009).
Defenses to Aggravated Assault
Aggravated Assault is often a highly defendable charge because of the absence of physical injuries and because of factual disputes as to how the alleged incident occurred. Some of the more common defenses include the following:
- Justifiable use of force in defense of others;
- Justifiable use of force in defense of property;
- Necessity or duress;
- False allegations by the alleged victim;
- Lack of provable intent to threaten;
- Inability to carry out the alleged threat;
- Insufficient evidence as to the intent to commit a felony (if charged as such);
- Instrument used does not constitute a deadly weapon;
- Disputes as to whether a defendant’s conduct constituted a threat;
- Alleged victim’s fears not justified;
Example Case- Aggravated Assault
State v. M.M. (Eighth Judicial Circuit, Baker County, Florida) (2014)- Our client was charged with aggravated assault after allegedly threatening his step-son with a handgun during a family altercation.
The incident arose when our client’s adult step-son, who was living at home, came back to the house in the early morning hours with an unknown woman. The step-son’s biological mother (our client’s wife) woke up and confronted her son about coming home late and bringing women into the house. This sparked a loud, heated argument, which awoke our client, who was sleeping in another room and uncertain of what was happening.
Fearing that a burglary or other attack was in progress, our client pulled a handgun from his nightstand and walked into the kitchen where the incident was occurring. The step-son then saw the gun, and began to walk towards our client in a threatening manner while cursing and daring our client to shoot him. Our client slowly raised the gun, walked backwards back into his room, at which point another household member called police. Our client was arrested and charged with aggravated assault.
Upon being retained in the case, our law firm immediately made contact with the State Attorney’s Office and presented three witness affidavits attesting to the defensive nature of the incident. We raised a ‘Stand Your Ground’ defense and insisted that the charges be dropped. After extended negotiation, the prosecution abandoned the case.
Outcome: Case dismissed.
Contact an Attorney
Given the severe penalties for aggravated assault and the multiplicity of defenses to the charge, the importance representation by an attorney cannot be overstated. If you have been accused of Aggravated Assault, contact Hussein & Webber, PL for a free consultation. We handle cases throughout the State of Florida.